United States District Court, D. Maryland
MEMORANDUM AND ORDER
J. GARBIS UNITED STATES DISTRICT JUDGE.
Court has before it Petitioner's Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody [ECF No. 211], Petitioner's
Amended Motion and Memorandum to Vacate, Set Aside, or
Correct Judgments [ECF No. 277], Petitioner's Motion for
Leave to Conduct Discovery [ECF No. 278], and the materials
submitted relating thereto. The Court finds that a hearing is
Frank Marfo (“Marfo” or “Petitioner”)
brings a 28 U.S.C. § 2255 motion challenging his federal
life sentence for his convictions of murder for hire,
conspiracy to murder a witness, bank fraud, conspiracy, and
other offenses. In addition to the grounds stated in the
original § 2255 motion [ECF No. 211], Marfo presented in
his Amended Memorandum of Law [ECF No. 277] a ground
regarding a time zone disparity in the cell-tower evidence
used during his trial. The Court will evaluate all asserted
participated in “a scheme to steal money orders and
checks and to defraud banks in Maryland and elsewhere”
from May 2009 to November 2011. United States v.
Marfo, 572 F. App'x 215, 218 (4th Cir. 2014). This
scheme involved a theft of money orders and checks from rent
deposit boxes located in Maryland, Virginia, and Delaware.
Id. Tavon Davis (“Davis”) and Marfo
recruited persons to open fraudulent accounts at banks in
Maryland and New Jersey. Id. These accounts were
used in the scheme for depositing “between $1 million
and $1.5 million worth of stolen money orders.”
2009, Davis recruited a young man, Isaiah Callaway
(“Callaway”), to participate in the scheme.
Id. Callaway was arrested by Baltimore County police
on December 29, 2010 while participating in the scheme and
was charged with possession of counterfeit documents and
theft. Id. at 218-19. After arrest, Callaway was
interviewed by detectives, admitted his participation in the
bank fraud scheme, and was placed on pretrial release.
Id. at 219.
Callaway's release, Davis contacted him and referred him
to Attorney Larry Feldman (“Feldman”), who became
his attorney. Id. Thereafter, federal law
enforcement officials became interested in interviewing
Callaway about the bank fraud scheme and contacted Feldman to
request interviews from Callaway. Id. Feldman,
although counsel for Callaway, informed Davis about the
federal officials' intention to interview Callaway in an
investigation that could lead the federal investigators to
Davis and Marfo. Id.
April 5, 2011 and April 11, 2011, Davis and Marfo
communicated and met several times with Bruce Eric Byrd
(“Byrd”) to discuss the threat to the fraud
scheme posed by the arrest and possible cooperation of
Callaway. Id. This included discussions about having
Byrd murder Callaway to prevent him from providing the
investigators with information about the bank fraud scheme.
Id. On April 11, 2011, Callaway was found shot dead
in a car in Baltimore. Id.
2011, Michael Copeland (“Copeland”), another
participant in the scheme, told the police that Callaway was
murdered by a triggerman (later determined to be Byrd), who
had been hired by Davis and Marfo. Id. Copeland
agreed to record his future meetings with Davis. Id.
In those recordings, Davis incriminated himself and stated
that Byrd and Marfo were “just as involved as he
was.” Id. Davis was subsequently arrested in
November 2011 and agreed to cooperate against Marfo and Byrd,
including confirming that Marfo contributed the money given
to Byrd for killing Callaway. Id. With Davis's
cooperation, Byrd and Marfo were arrested. Id. at
219-20. Davis and Byrd both entered into plea agreements
including benefits for cooperating against Marfo.
Id. at 220. Davis testified at Marfo's trial,
but Byrd did not.
his conviction on all counts, Marfo was sentenced to
concurrent sentences of life imprisonment on four counts, a
consecutive sentence of 120 months on another count, and
concurrent sentences of 57 months on two counts. Id.
The Fourth Circuit affirmed his conviction and sentence on
May 23, 2014. Id. The Supreme Court denied
certiorari on November 3, 2014. Marfo v. U.S, 135
S.Ct. 468 (2014).
MOTION TO VACATE, SET ASIDE, OR CORRECT JUDGMENTS
prevail on a 28 U.S.C. § 2255 claim, the petitioner
bears the burden of proof to show, by a preponderance of the
evidence, that his sentence is unlawful on one of several
specified grounds. Berry v. United States, 884
F.Supp.2d 453, 457 (E.D. Va. 2012).
district court must resolve a Section 2255 petition in two
steps. United States v. Pettiford, 612 F.3d 270, 277
(4th Cir. 2010). First, the district court “must
determine whether the prisoner has met his burden of showing
that his sentence is unlawful.” Id. Second,
“if the prisoner's sentence is found unlawful on
one of [the specified] grounds, the district court should
grant the prisoner an ‘appropriate' remedy.”
the specified grounds is the denial of a Sixth Amendment
right to reasonably effective assistance of counsel. To
prevail, the petitioner must satisfy the Strickland standard
of showing that counsel's performance was deficient, and
that the deficient performance prejudiced the
petitioner's defense. See Rodriguez v. Bush, 842
F.3d 343, 346 (4th Cir. 2016) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)).
establish “deficient performance, ” the
petitioner must show that the counsel's representation
“‘fell below an objective standard of
reasonableness, ' as measured by ‘prevailing
professional norms.'” United States v.
Powell, 850 F.3d 145, 149 (4th Cir. 2017) (internal
citations omitted). This is a high bar and requires
“‘showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel'
guaranteed the defendant by the Sixth Amendment.'”
Id. The court must avoid viewing counsel's
performance through the distorting effects of hindsight, and
must be satisfied that the petitioner has overcome
“‘a strong presumption' that [his]
counsel's conduct [fell] within the wide range of
reasonable professional assistance.” Id.
establish prejudice, “‘[t]he defendant must show
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.'”
Rodriguez v. Bush, 842 F.3d 343, 346 (4th Cir. 2016)
(internal citations omitted). A reasonable probability is a
“‘probability sufficient to undermine confidence
in the outcome.'” Id.
Marfo's asserted claims allege ineffective assistance of
counsel, and one claim (Claim 4) alleges a violation of his
due process rights under Brady v. Maryland, 373 U.S.
Claim 1: Defendant's Appearance in Jail Clothing
argues that counsel provided ineffective assistance by
allowing the jury to see him in jail clothes during voir dire
and opening statements and for not raising the issue on
direct appeal. Am. Mot. at 23, ECF No. 277. Petitioner
alleges that wearing prison clothing undermined his right to
a fair trial, was not based upon any sound trial strategy,
and prejudiced him by communicating to the jury that he was
too dangerous to be released before trial. Id. at
Court finds, however, that Marfo made a strategic decision to
wear the jail clothing consistent with a trial strategy. He
discussed with his counsel before the decision, and wore the
clothing to paint himself as a victim of co-defendant Davis,
to show that he has conceded the fraud and is already being
punished for it (so as to maintain his credibility when he
contests his murder charge), and to show that he is poor.
Gov.'s Resp. at 58, ECF No. 231. Defense counsel made
references to the Petitioner's jail clothes in the
opening statement and confirmed to the Court that this was
Petitioner's intention at the time. Id. at
first day of trial, Attorney Purpura brought the jail
clothing issue to the Court's attention and explained
that, as part of the opening, the defense would draw
attention to the fact that Marfo has been detained:
THE COURT: You say he's going to be wearing this during
MR. PURPURA: Yes. In the opening I think Mr. Bussard is going
to make it clear that he is detained, and has been detained
since the day he was arrested. That's it. We can take
care of it.
THE COURT: Okay. I mean if that's what you want,
Trial Day 1 Tr. at 2:13-20 (ECF No. 147).
Section 2255 motion, the Court must afford a high degree of
deference to counsel's trial strategy. Powell,
850 F.3d at 149 (“‘[j]udicial scrutiny of
counsel's performance must be highly
deferential.'”) (internal citations omitted). The
Court finds that Attorney Purpura's trial strategy was
reasonable under the circumstances and does not establish
Purpura submitted an affidavit explaining that it was
“part of our trial strategy to concede the fraud
conviction and contest the murder . . . [b]y admitting the
fraud, we had hoped that Marfo's claim of innocence for
the murder would be more credible.” Purpura Aff. at
1-2, ECF No. 231-3.
Court finds no basis to hold that counsel's trial
strategy “‘fell below an objective standard of
reasonableness.'” Powell, 850 F.3d at 149.
The risk that the strategy itself may have been ineffective
is a risk that all litigants must face at trial.
Petitioner did not raise this issue on direct appeal and may
not raise it now. United States v. Landrum, 93 F.3d
122, 124 (4th Cir. 1996) (“A claim raised for the first
time in a § 2255 motion generally is not cognizable in
federal court unless the petitioner demonstrates ‘both
(1) ‘cause' excusing his . . . procedural default,
and (2) ‘actual prejudice' resulting from the
errors of which he complains.'”) (internal
citations omitted). The Court does not find any excusable
cause for failing to raise this issue on direct appeal.
the Court finds that Marfo is not entitled to Section 2255
relief on the basis that trial counsel made the strategic
decision to have him dress in jail clothing.
Claim 2: Attorney Catherine Flynn
argues that his trial counsel provided ineffective assistance
by failing to investigate and call Attorney Catherine Flynn,
one of Davis's former defense attorneys. Am. Mot. at
26-27, ECF No. 277. He alleges that Ms. Flynn would have
testified that she believed that co-Defendant Davis was
trying to “set up” Marfo, in order to protect
himself from murder charges. Id. at 28. This
testimony, Petitioner claims, would have neutralized the
damaging testimony from Attorney Murphy, who testified to
what Davis told him about the murder conspiracy involving
Marfo. Id. at 30.
Government states that counsel's decision to not
investigate and call Attorney Flynn is a tactical decision
that cannot be subject to challenge. Gov.'s Resp. at 72,
ECF No. 231. Moreover, the Government argues that Attorney
Flynn could not have impeached Attorney Murphy because Davis
never incriminated himself to Attorney Flynn, and the defense
attorneys for Marfo were aware of that fact. Id. at
73-74. Finally, the Government argues that Petitioner's
claim is based on the inadmissible testimony of an
“intern” working for Marfo's defense counsel
stating what Attorney Flynn allegedly said to the intern out
of court. Id. at 76.
Flynn has submitted an affidavit that describes the
conversation she had with Miranda Dore, the
“intern” who worked in the office of
Petitioner's defense attorney. Flynn Aff., ECF No. 231-2.
Ms. Dore had previously submitted an affidavit to
Petitioner's original Motion to Vacate, attributing
certain statements to Attorney Flynn,  who did not have
an opportunity to confirm the accuracy of those statements.
Compare Dore Aff., ECF No. 214-1, with
Flynn Aff. ¶¶ 11-17, ECF No. 231-2. Attorney Flynn
states in her affidavit that she “never stated that
[she] suspected that Mr. Davis was planning or intended to
‘set someone up' or to do anything in that vein,
” “never suspected that Mr. Davis was seeking my
advice in order to ‘set someone up, '” and
“never heard any recordings of Davis.” Flynn Aff.
¶¶ 18-20, ECF No. 231-2. She states that she did
not hold the opinion, belief, or knowledge that Davis
intended to “set anyone up.” Id. ¶
intern testimony, if offered to prove what Attorney Flynn
said about her feelings regarding Davis's motives, would
be inadmissible hearsay. Even if Attorney Flynn were to
testify that she had feelings and suspicions that Davis made
false statements to Attorney Murphy to set up Marfo, those
feelings would not constitute proof of the truth or falsity
of what Davis said. Moreover, the statements in the
intern's affidavit regarding what Attorney Flynn said are
largely refuted by the affidavit of Attorney Flynn herself.
Court does not find that Petitioner has carried his burden of
establishing entitlement to relief on the basis of Dore's
affidavit, and declines to provide a remedy on the basis of
her statement about what Attorney Flynn allegedly said she
had believed at the pertinent time.
Court must give a high degree of deference to defense
counsel's decision on which witnesses to present to the
jury. United States v. Dyess, 730 F.3d 354, 364 (4th
Cir. 2013) (“we give counsel wide latitude in
determining which witnesses to call as part of their trial
strategy”); Wilson v. Greene, 155 F.3d 396,
404 (4th Cir. 1998) (“[d]ecisions about what types of
evidence to introduce ‘are ones of trial strategy, and
attorneys have great latitude on where they can focus the
jury's attention and what sort of mitigating evidence
they can choose not to introduce'”). Although it is
true that courts have held counsel's representation to be
deficient if counsel fails to investigate and interview
critical prospective witnesses, Huffington v. Nuth,
140 F.3d 572, 580 (4th Cir. 1998) (citing cases), Attorney
Flynn's proposed testimony about her suspicions did not
put her into this category.
Court finds that the Petitioner has not carried his burden of
showing, by a preponderance of the evidence, that he is
entitled to relief from his sentence because of his
attorney's decision not to call Attorney Flynn as a
Claim 3: Byrd's Refusal to Testify at
contends that his counsel operated under a conflict of
interest by advising Byrd that if Byrd testified in favor of
Marfo at Marfo's trial, the Government would give Byrd a
life sentence. Am. Mot. at 31-32, ECF No. 277. This advice
allegedly caused Byrd to plead the Fifth Amendment and refuse
to testify. Id. at 32. Hence, Petitioner argues, he
was prevented from eliciting testimony from Byrd that would
have destroyed Davis's credibility and refuted his
testimony. Id. at 33.
Government disputes the factual basis for the claim and
asserts that the evidence presented by Marfo to support this
claim (i.e., Marfo's own testimony of an out of
court statement allegedly made by Byrd) is hearsay and
inadmissible to prove the truth of Byrd's alleged out of
court statement. Gov.'s Resp. at 83-84, ECF No. 231.
petitioner who claims ineffective assistance of counsel based
on a conflict of interest must show that his or her attorney
labored under an “‘actual conflict of
interest'” which “adversely affected his
lawyer's performance.'” Stephens v.
Branker, 570 F.3d 198, 209 (4th Cir. 2009) (internal
citations omitted). An actual conflict of interest exists
when the petitioner's interests diverged from his
attorney's with respect to a “material factual or
legal issue or to a course of action.” Id. The
adverse element requires a showing that the counsel took
action for one client (or himself) that is “necessarily
adverse” to another client, or that the counsel failed
to take action for one client (or himself) for fear of
injuring another client. Id. Moreover, the
counsel's action must have been causally related to the
actual conflict. Id.
of any incorrect “advice” that Petitioner's
counsel gave Byrd (who was not his client) would not
establish that “petitioner's interests diverged
from his attorney's.” Stephens, 570 F.3d
at 209. Petitioner had his own counsel (Attorney Purpura and
Attorney Bussard), and Byrd also had his own counsel
(Attorney Curlett). Purpura Aff. at 3, ECF No. 231-3. On the
day in question, Purpura wished to interview Byrd to see if
Byrd's testimony would corroborate Marfo's story and
determine whether Byrd would testify for Marfo. Id.
The record shows that Byrd's decision to not testify was
made after he had the opportunity to speak to his
own counsel. As Mr. Purpura states in his affidavit:
With the arrival of his attorney, Mr. Byrd directed a
question that appeared to be to me, concerning that if he
testified would that effect [sic] his plea. I said that is an
issue you should discuss with your attorney and Mr. Bussard
and I then waited outside the interview booth. Approximately
five to ten minutes later, Mr. Curlett confirmed that Mr.
Byrd if called by defense would invoke his Fifth Amendment
right against self-incrimination. I wanted Marfo to hear Mr.
Byrd invoke his Fifth Amendment Right and requested that this
take place in open court with Marfo present. After a lengthy
colloquy which is now part of this record between Mr. Byrd,
Judge Garbis and Mr. Curlett, Mr. Byrd elected not to
Id. Purpura states his understanding that Byrd chose
not to testify for Marfo in part because Byrd had already
stipulated to contrary facts in his plea agreement and doing
so would have ...